The ISP is a far ranging concept that exists in the online world. ISPs such as Optimum Online, Napster, Usenet Server, and YouTube, offer a rainbow of different services. Some ISPs connect to the Internet, while others allow you to participate on the newsgroups. At the end of the day, however, they are all protected by the grace of the Digital Millennium Copyright Act (DMCA). The DMCA has a safe harbor provision which effectively absolves the ISP from playing a copyright traffic cop on their network.

This provision has been a blessing for Internet providers such as AT&T, a company which was a significant proponent of the safe harbor provision during its previous iterations. As a result, the Internet community was baffled when AT&T recently stated they would consider filtering unauthorized content. The fact that any ISP would voluntarily police their own network has many scratching their heads. Why bother doing someone else’s job, putting up with the expense, and possible consumer backlash?

James Cicconi, AT&T Senior Executive Vice President-External and Legislative Affairs, reignited the Internet’s attention during a panel discussion at the CES (Consumer Electronics Show) earlier this month. Accompanied by NBC Universal General Council Rick Cotton, James gave new life to the very real possibility that network filtering was coming to an ISP near you. With AT&T in control of a significant portion of the Internet backbone, any decision made could have a ripple effect on millions of customers. The news hasn’t gone over well with bloggers, journalists, and countless AT&T customers screaming bloody murder on an infinite number of forums.

Just about anyone involved in the debate has their own theory why AT&T is doing this. Some compelling theories suggest AT&T is working in conjunction with the entertainment industry. The theory suggests AT&T needs support for eliminating net neutrality, and is playing politics with the entertainment industry to meet this end. Tim Wu of Slate cleverly discusses a few other theories, such as net neutrality and bandwidth control.

So why is AT&T going through the potentially arduous task of policing its own network? Slyck.com spoke with James Cicconi, who discussed why AT&T was taking up the filtering cause.

“We’re not taking on a legal enforcement role,” Jim Cicconi, told Slyck.com. “We’ve been clear. We don’t feel we have a legal responsibility. We’re not doing that in a legal sense. We do recognize it’s a real problem. There are property rights involved with copyrighted content. Simply saying there’s no legal responsibility doesn’t mean we have no responsibility. We also have responsibility to our customers. [A lot] of pirated material is used to transfer viruses, malware, and things of that nature.”

“[Unauthorized content] raises the cost for our customers. We have a very a small percentage using a majority of the bandwidth. The volume of illegal content is a factor of cost.”

“If someone is using a p2p network on a cell 24/7, it can adversely impact the service of their neighbors. It has the effect of not providing the service paid for. Overwhelming usage is from BitTorrent traffic. No one wants to get to the point [where] we say, “You can’t do that.”

As AT&T has begun evaluating and testing their filtering technology, BitTorrent users have been left to wonder if they’ll suddenly wake to an idle transfer. However, James Cicconi told Slyck.com that AT&T hasn’t implemented any filter on their public network just yet. Providing the technology can be developed, it wouldn’t be imposed until a rather lengthy public trial and endorsement. During the CES panel discussion, Cicconi stated “what we are already doing to address piracy hasn’t been working.” This left us to wonder if AT&T had already begun testing their network.

“It’s not that AT&T has done anything. Rather, the current system isn’t resulting in a reduction in piracy. I don’t believe the current model of suing users is successful or will be in the long term. And so what I was positioning there, we’re working with the industry, a model to identify copyrighted content. I think we’re pretty clear we haven’t [publicly] tested a system...”

“We’ve [internally] tested several systems, and we’re going to see if there’s a way to identify pirated content on the network. That asks the question of what to do if we develop such as technology. The actual deployment raises a lot of questions, [such as the impact on] customer rights and government policy. We wouldn’t proceed without answers to those questions.”

Consumers can take some comfort in the knowledge that AT&T isn’t moving forward until the public and government weigh in. Judging from the current public reaction, however, the unofficial response is an emphatic “no!”. Comments posted to various articles written on this subject matter are overwhelmingly negative against AT&T’s position, citing Internet censorship, cohorting with the entertainment industry, and attempting to defeat net neutrality standards. Regardless of the reason, public opinion thus far has been overwhelmingly against the plan.

“We hear from our customers directly and indirectly. It’s a very competitive business, ravenously so. I think our company is very, very sensitive to customer attitude - we have to consider this.”

AT&T is also looking to be heard from their perspective, and offers consumer protection as a carrot on the filtering stick.

“[There are] a lot of cases where people are being sued - their neighbor using their computer, or unprotected router - and downloading illegal content. If someone develops a system where filtered technology [stops this], one would feel it’s a lot better. Then customers would be protected. I don’t know if it exists, but I point out that if it were child pornography, I don’t think most people would have a problem with that. You have another level of moral dilemma, but it’s still illegal traffic. There are a lot of people defending copyrighted sharing, but how many would say it’s legal and right? Cooler heads need to come together and discuss whether the internet is a zone where there are no morals or standards of content.”

As with any threat of filtering, clamors of free speech violation inevitably surface. However, rectifying the distribution of copyrighted material is difficult to justify, at least to AT&T. There’s also the invisible line between what’s OK to distribute, and what’s not.

“I don’t think downloading a pirated movie is a free speech right. Other areas, such as pornography, people do see a line. What we’re saying [is]…let’s see if we can develop a means to see illegal or pirated material transferring. If we do have a means, how and where should we use it? No one’s running out there and all of a sudden identifying such traffic. We’re not going to do that. We are partnering to identify. If it’s possible, we need to have a policy discussion on what the right thing is to do. Should we ignore it? If we have the means to stop it, can we, without suing someone?”

“We’re not going to take actions of that nature without a thorough vetting with government and customers.”

About 10 years ago, most ISPs, including AT&T, were lobbying for the safe harbor provision in the DMCA. They got their wish, and since then ISPs have enjoyed immunity from any copyrighted material traversing their network. We asked Cicconi whether they felt that voluntarily filtering their network would negate the effectiveness of the DMCA, and put liability back on the ISP.

“No...We’ve made very clear to the content providers that...we don’t have the legal responsibility, except perhaps forwarding notices. We don’t have the responsibility to be an enforcement agent. We’ve also made clear we’re not changing that position. We’ve also said we’re willing to partner with the industry to address this. If they want to hold us to a legal requirement, we’re not going to partner with any such company. Content companies recognize they can’t impose any such responsibly. They’re not attempting to. But, I don’t see any movement to do that. If someone tries, we’ll end up in court. We’re not going to, under any circumstance, undertake enforcement responsibilities.”

Whenever the word “filter” and “P2P” are in the same sentence, fear almost always surrounds the potential loss of legitimate content. As many are already aware, BitTorrent is the de facto standard of distribution for many creative commons and copylefted content. BitTorrent, Inc. has worked to fill their site with both free and pay content, all distributed by this protocol. Additionally, many unsigned and signed bands alike utilize P2P for the distribution of their work. Any filter that’s developed would have to take on the daunting task of separating legitimate content from unauthorized content, and then further distinguishing intentionally free information.

“We’re very sensitive to legal content,” Jim reassured us. “We know World of War Craft updates and patches are distributed over BitTorrent. There are many mainstream applications and patches [that are] distributed via BitTorrent. BitTorrent isn’t an evil protocol, it’s a very efficient means. It’s a challenge for network operators. [Data streams] can run so long cooperatively. The challenge is, that it is constant. With video it’s exponential. The network…is not built to handle the volume.”

According to Cicconi, AT&T is doing everything it can to handle the traffic by investing billions of dollars each year, but even AT&T doesn’t have the money to keep up. Smart traffic management is the answer, especially with a challenging, multi-use application such as BitTorrent.

“There’s nothing wrong with BitTorrent. There’s very legitimate usage, [and] one would hope that it would grow. We’re focusing on pirated content over BitTorrent, [not BitTorrent per se.] The only issue is the sheer volume of traffic. It’s no different than any other traffic management challenge.”

Reflecting on AT&T’s proposal, many file-sharers can recall instances where the entertainment industry was sure it found the golden P2P bullet - only to see the threat slowly fade away. The threat of corrupt files destroying networks never came to fruition, suing network administrators did little to stop the technological advancement of file-sharing protocols, and ISPs that tried throttling bandwidth were met with encryption. While the mainstream P2P user is alarmed at these recent developments, most veterans have come to accept at worst there will be a brief adjustment period. Is AT&T concerned about the inevitable technological arms race spiraling out of control?

“The short answer, sure. That’s part of the learning that’s going on with some of our engineers to understand the experience they’ve had today. Try to anticipate what actions may be taken. Encryption is an obvious challenge. Just because there’s a challenge shouldn’t [mean we] ignore it.”

“Defending the internet doesn’t mean defending all conduct that occurs on the internet. Do we want the internet to be a civil place…or the wild west where you need to protect yourself. We have a lot of bad content [on the network]. Should we find ways to find and stop it? It’s an identical question to other illegal content.”

A common theme throughout our conversation with Jim Cicconi was “obligation” and “responsibility”. Jim Cicconi emphasized these words, as he often drew the analogy of witnessing a shoplifter or mugging. Does one help during that circumstance? We may not be legally responsible, but do we have a moral obligation?

It’s difficult for the average netizen to imagine a large corporation such as AT&T would feel any moral obligation, let alone to one that has helped prop up the broadband and digital entertainment revolution. Yet AT&T sees several issues – their moral obligation to deter theft, the need to save money, and providing a good service to everyone else not using P2P. Whatever the reasons and theories conjured for AT&T’s motivation, there are a few certainties. Filtering isn’t coming any time soon, and if AT&T is honest regarding their sensitivity to the customer’s opinion, it may never actually happen.